Does Brett Kavanaugh bear the burden of proof?

The latest issue we have in front of us is whether Christine Ford or Brett Kavanaugh bears the burden of proof, before the Senate, and before everyone else. Anita Hill says Kavanaugh does. #MeToo in general inclines in that direction. If you believe the victim, the perpetrator bears the burden. Republicans, of course, say Ford bears the burden of proof. Yet Title IX investigations across the country are discredited because they do not grant due process to the accused. More and more, victims of Title IX proceedings sue colleges and universities for booting them out based on accusations no one would ever credit in court.

Hearings to confirm Kavanaugh are not Title IX hearings. They are not legal proceedings. The process to confirm Kavanaugh is a political proceeding. We do not have standards to determine who bears the burden of proof in political proceedings. One might think Dianne Feinstein bears the burden in this case, but no one has suggested that. She did not write Ford’s letter, but she certainly mishandled it. She has damaged her reputation as a senator more than she thinks.

Commentators act as if we are turning American jurisprudence on its head when victims’ advocates say Kavanaugh bears the burden of proof.

Commentators act as if we are turning American jurisprudence on its head when victims’ advocates say Kavanaugh bears the burden of proof. Yet the process we have in front of us is not a jurisprudential process. It is purely political. That means the decision is purely a matter of power and influence. If you try to apply jurisprudential rules to political processes, you end up with what you see in front of us: totally open warfare based on no rules at all.

No one appears to know what rules apply. That is partly because #MeToo has worked diligently to remove the distinction between jurisprudence and politics. Safety, fairness, and long-standing imbalances of power between men and women require new standards, the movement suggests. In he-says, she-says contexts, placing the burden of proof on the accused means you believe the victim. The accused has no defense, since uncorroborated denial is no proof. The accusation therefore stands. Does #MeToo actually want to rectify old power imbalances that way?

No one appears to know what rules apply.

I can tell you one thing: hearings to confirm a Supreme Court justice are not a good place to work out new rules. That’s a political furnace, where principles of jurisprudence are irrelevant. Wars have rules, too, but you don’t walk up to soldiers in the middle of battle to tell them we want to change a few important rules, here. #MeToo bagged a lot of people after Bill Cosby and Harvey Weinstein went down. Many of them needed to go down long before they did. Yet the movement seemed unconcerned how much good will it lost when Garrison Keillor and many others lost their reputations without cause.

Just like #BlackLivesMatter, #MeToo has become entangled with left-right warfare. That’s too bad, because both movements had a lot of potential for good. The two partisan poles have far too much power to transform every problem into a ruthlessly political one, where power imbalances in social and legal spheres must be fought by politicians who have their own interests at stake.

If social justice warriors and their opponents want to fight a civil war, just fight it. Try not to pretend you are engaged in some higher enterprise. The purpose in fighting a war is to win it. The only higher purpose the conflict serves is what victors and vanquished – especially victors – make of it afterwards.

Note: I do not want to see Kavanaugh on the Supreme Court. When I learned he was okay with torture memo authors, my decision was made. I did not have to think about it anymore. So these comments about burden of proof in legal and political proceedings relate only to principles that apply to each kind of process.